Expect More Strict Federal Drug Prosecution After June 1, 2017

On May 10, 2017 United States Attorney General Jeff Sessions issued a Memorandum to all federal prosecutors titled Department Charging and Sentencing Policy. The new policy requires federal prosecutors to charge and pursue the most serious, readily provable offenses, i.e., those that carry the longest guidelines sentence, including mandatory minimum sentences.

The new policy rescinds any previous inconsistent policies of the United States Department of Justice, including the Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (August 12, 2013) and Guidance Regarding section 851 Enhancements in Plea Negotiations (September 24, 2014).

Simply put, the new policy generally requires prosecutors to seek whatever charges would lead to the most years in prison for any and all federal offenses. But, it is expected to have the most impact upon those arrested for possessing or selling drugs. The policy, however, does allow prosecutors to seek permission on specific cases to not strictly follow it if authorized by supervisors. But, non-adherence to the new policy is expected to be infrequent.

The new policy’s primary goal is substantially to increase prison terms for those convicted of federal drug crimes, thereby reinvigorating the pre-Obama era war on drugs,. According to a recent article in The Florida Times-Union, however, State Attorney Melissa Nelson’s office has indicated the new policy won’t effect the referral of drug cases from her office to the U.S. Attorney for the Middle District of Florida.

And, in a rather surprising move, 31 former and current state and local prosecutors from all over the country, including the State Attorneys in Orlando and Tampa, signed an open letter denouncing the policy. According to those prosecutors, the new policy represents “an unnecessary and unfortunate return to past ‘tough on crime’ practices that we know simply don’t enhance or promote the safety of communities.”

The open letter from various prosecuting attorneys criticizing the new federal drug policy is remarkable on several levels. First, it demonstrates agreement by a wide spectrum of the law enforcement community with the growing national sentiment that the previous war on drugs was a failure. As noted in the letter, there is no credible evidence increased sentences decrease the crime rate. In contrast, the letter notes there is evidence to suggest exposure to the criminal justice system sometimes actually increases the risk of future criminal conduct.

Secondly, the letter advocates “treatment, support and rehabilitation programs” for low-level drug offenders and those with mental illnesses in lieu of decades, and in some instances life, in prison under the new federal policy. Moreover, in expressing “grave concern” over the new federal drug policy, the open letter agrees with national law enforcement leaders that we “need not use arrest, conviction and prison as the default response for every broken law.”

In addition to the open letter from numerous state and local prosecutors, on May 18, 2017 Attorneys General from 15 different states similarly wrote Attorney General Sessions to express their “deep concern” over his direction for federal prosecutors to charge all defendants with the most serious criminal offenses carrying the most severe penalties. Those Attorneys General noted “[b]eyond being unsound, policies that fail to provide individualized sentencing are also unjust and unfair in application.” They asked Sessions to be “smart and fair” about crime by rescinding his instructions to federal prosecutors.

If you’ve been arrested for possession or sale of drugs in violation of federal law, you should retain a Jacksonville criminal defense lawyer well versed with federal drug laws and the new pro-prosecution drug policy issued by Attorney General Sessions. And, if you have instead been arrested for drug offenses in violation of Florida law, make sure your lawyer is aware of the May 2017 open letter from state and local prosecutors around the country, including right here in Florida, urging more innovative and fair approaches to the arrest and prosecution of most drug offenses at the state level. Regardless of whether your drug possession or sales case is in state or federal court, having an attorney knowledgeable about these recent developments will give you the best chance of avoiding substantial prison time as a result of your arrest in Duval, Clay, Nassau or St. Johns County.